Copyright Rainey Collins Ltdhttps://www.raineycollins.co.nz/ArticlesMon, 11 May 2026 12:22:39 GMT60MoST V4.0.9419.22907f2bed788-9ac9-4036-87df-b2b010b5b6cbAlan Knowsleyhttps://www.raineycollins.co.nz/your-resources/articles/11-5-26-employer-allows-evidence-to-be-destroyedSun, 10 May 2026 20:30:00 GMT<p>The Employment Relations Authority has upheld a personal grievance claim for hurt and humiliation for the way an employer treated the employee at work.  This involved the employer abusing and demeaning the employee on each of his first three shifts. </p> <p>The ERA awarded $2,000 compensation as well as $370 in unpaid wages.  The employer denied that the employee had worked for him other than a two-hour trial and claimed that the employee harassed another employee on his first day. However, the employer allowed the CCTV footage of the shifts to be overwritten rather than saving the evidence. The ERA found this to not be a credible action a reasonable employer could take if the footage actually supported the employer’s position. </p> <p>If you have evidence of any work incidents, it pays to preserve that evidence so that it can be used to prove what happened.  If the employer had kept the CCTV footage, it may have enabled the ERA to come to a different outcome.  Instead, the employer was unable to provide any evidence to support their allegations of poor behaviour towards another staff member.  Even having allowed the CCTV footage to be destroyed they failed to present any other evidence e.g. from the employee who was allegedly harassed.</p> <p>The lack of evidence from the employer meant that the ERA found in favour of the employee and that they had been abused and demeaned. As they had only worked for 3 shifts the hurt and humiliation was at the low end and only $2,000 was awarded. </p> <p> <strong>Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.</strong></p>ArticlesEmployment9a4f4e79-2218-4b36-aeec-e45058db32bcAlan Knowsleyhttps://www.raineycollins.co.nz/your-resources/articles/7-5-26-insurance-provider-not-required-to-pay-for-additional-flooding-preventionWed, 06 May 2026 21:32:00 GMT<p>A family home was damaged after serve flooding and needed to be rebuilt. The owners lodged a claim with their insurance provider, who accepted the claim and agreed to cover the cost of rebuilding the home. </p> <p>The family believed the new house should be built to a higher floor level to prevent future flooding. If they did not do this, they were concerned that council may place a notice on the property title warning that it is a flood risk. This would have substantial financial implications for the family, specifically with regard to insurance and mortgages. </p> <p>The insurance company believed it only needed to build the floor level to the minimum required to obtain building consents. This is what was specifically covered in the insurance policy. </p> <p>A dispute arose as a result of this disagreement, and the case was dealt with by the Insurance and Financial Services Ombudsman Scheme. The Ombudsman considered the terms of the policy, what was required for building consent, and expert reports from both sides. </p> <p>Under the policy the insurance company only needed to cover the costs that are <em>reasonably required</em> to rebuild the home and meet council requirements. While the higher floor level was recommended, it was not strictly required to obtain building consent at that stage. </p> <p>There was no firm decision from the council that required the insurance company to cover the additional building costs. As a result, the IFSO decided that the insurance company had acted correctly in not covering the higher floor level.  </p> <p>They accepted the significant impact of the potential flood risks on the family, both physical and financial, but the Ombudsman could only consider whether the insurance company had applied the terms of the policy correctly, which they decided they had. </p> <p>The Ombudsman does not have the power to question the fairness of the policy, nor can they require an insurer to make payments outside the terms of the policy. </p> <p>With the recent flooding around the country, such disputes may be more prevalent. It is important to always check the specific wording of an insurance policy, as a failure to do so can be costly and lead to significant complications. </p> <p><strong>Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.</strong></p> <p> </p>ArticlesInsurancee69b767f-f5ad-4779-8a2d-7962bab649c7Laurie Palletthttps://www.raineycollins.co.nz/your-resources/articles/30-4-26---what-you-need-to-know-about-title-and-solicitor-approval-clauses-in-agreements-for-sale-and-purchaseSun, 03 May 2026 20:22:00 GMT<p>A purchaser needed to submit an offer on a tight deadline without first speaking to their solicitor.  They were confident they were protected by including a solicitor’s approval clause covering both the agreement and the title.  They understood that these clauses meant their solicitor could review everything after signing and that they then had the right to cancel later if they changed their mind and/or were not happy with the solicitor’s review advice. </p> <p>When the title search came back, the purchaser was unhappy to discover the property had a shared right of way.  They were concerned about future inconvenience and ongoing maintenance costs, so they instructed their solicitor to cancel the agreement on the basis that the title had not been approved.</p> <p>Unfortunately, this is where the misunderstanding of the use of a solicitor’s approval clause became costly.  The shared right of way was not a legal defect in the title.  As the solicitor had no legal basis to withhold approval, the purchaser was unable to cancel and remained bound to proceed with the purchase.</p> <p>Solicitor’s approval clauses often give purchasers a false sense of security.  Many purchasers believe these clauses allow them to walk away for any reason until they learn, usually the hard way, just how limited that protection really is.</p> <p><strong>Solicitor’s Approval of Agreement</strong></p> <p>This type of solicitor’s approval clause allows the purchaser’s solicitor to review and approve the agreement.  However, case law shows that this power is limited.</p> <p>A solicitor may only withhold approval of the agreement based on the legal implications of the transaction. This includes matters such as:</p> <ul> <li>whether the agreement is legally valid;</li> <li>whether its terms are enforceable; and</li> <li>whether the legal obligations imposed on the purchaser are appropriate.</li> </ul> <p>It is important to note that a solicitor cannot use this clause to:</p> <ul style="list-style-type: disc;"> <li>give general financial advice;</li> <li>assess whether the purchase is a “good deal”, or</li> <li>decide whether the property is a wise or suitable investment for the purchaser.</li> </ul> <p><strong>Solicitor’s Approval of Title Clause</strong></p> <p>This type of clause usually states that the purchaser’s solicitor will search, review and approve the title within a specific timeframe. </p> <p>However, the solicitor’s right to withhold approval is limited. The agreement can only be cancelled if the title contains a legal defect, not simply because the purchaser is unhappy with what the review of the title revealed.</p> <p><strong>What Is <em>Not</em> a Defective Title?</strong></p> <p>A title is not defective simply because it contains features that a purchaser may find undesirable.</p> <p>Examples of matters that are not legal defects of title include:</p> <ul style="list-style-type: disc;"> <li>the existence of multiple rights of way or easements;</li> <li>noise, dust, or traffic caused by the use of an easement;</li> <li>future maintenance costs associated with an easement;</li> <li>the cost of providing services such as water access; or</li> <li>consent notices that impose ongoing obligations or expenses.</li> </ul> <p>These matters relate to the quality or use of the land, not the legal ability of the vendor to sell it.</p> <p>A title approval clause should be worded so that it is the purchaser who is approving the title rather than the solicitor, as this provides stronger rights to cancel for reasons such as the above.</p> <p><strong>Conclusion</strong></p> <p>Solicitor approval clauses are not a general “get out of jail free” card. Their purpose is to protect purchasers from legal defects and implications.</p> <p>We recommend if you have any concerns about including a solicitor’s approval clause, that you seek legal advice before entering into any agreement. </p> <p> </p>ArticlesProperty38b11eea-323a-450f-b586-e28ced5dcc63Peter Johnstonhttps://www.raineycollins.co.nz/your-resources/articles/30-4-26-succession-under-te-ture-whenua-maori-act-1993-life-interests-and-de-facto-relationshipsWed, 29 Apr 2026 20:11:00 GMT<p>The Māori Land Court decided a widow’s life interest in her ex-husband’s estate came to an end when she entered into a de facto relationship after his passing. </p> <p>The applicant sought a life interest as the deceased’s surviving spouse. The application was not made until 11 years after the passing and concerned roughly $30,000 sitting in trust at the time of the hearing. </p> <p>The applicant and the deceased were married for a number of years and were still legally married at the time of his passing. However, it was disputed as to whether they were separated. Nonetheless, in the 11 years after the passing, the applicant entered into a relationship with someone who she lived with for a period of time. </p> <p>The estate was dealt with under Te Ture Whenua Māori Act’s intestacy (lack of a Will) provision. Under the Act, a surviving spouse of a Māori landowner may receive any income from the deceased’s Māori freehold land interests. However, this right ends if the surviving spouse enters into a new civil union or de facto relationship, among other instances. </p> <p>The Court considered the main questions needing to be determined were (a) whether the applicant and the deceased were in a relationship at the time of his passing, and (b) did the applicant enter into a de facto relationship since the passing that would limit her entitlement to a life interest. </p> <p>In answering (a), the Court decided that the applicant and the deceased were in a relationship, albeit an unorthodox one, at the time of his death. Despite periods of time living at different residences during their relationship, the specific facts did not indicate that they were living apart for the purposes of deciding if they were in a relationship. </p> <p>The Court spent most of its discussion focused on whether the applicant and her new relationship partner “live together as a couple” so as to make their relationship a de facto relationship to which s the provision applies.  </p> <p>In determining this the Court took account of the duration of the relationship, nature of common residence, whether a sexual relationship exists, degree of financial dependence, use of property and mutual commitment to a shared life, among other things.</p> <p>The relationship in question had been on-and-off for about four years, with them having lived together for the latest 12 months (as flatmates in her contention). The Court was satisfied a sexual relationship did exist and there were a series of events and factors that did point towards a shared life. Whilst there was not financial dependence between them, nor shared property, the Court found that the relationship between the applicant and her new partner was a de facto relationship. It also considered important that whanau and others did view them as being in a relationship. </p> <p>Because of this finding the Court decided that the applicant was entitled to a life interest from the deceased’s estate accumulated up until the date on which she entered into a de facto relationship, after which all funds accumulated were the property of the Estate, set aside for the deceased’s children. </p> <p>Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.</p> <p> </p>ArticlesMaori IssuesRelationship PropertyWills Estates0999593c-a026-4855-b4e4-c9cb0c6109c9Peter Johnstonhttps://www.raineycollins.co.nz/your-resources/articles/24-04-26-court-of-appeal-decision-on-jurisdiction-of-the-maori-land-court-and-maori-customary-titleFri, 24 Apr 2026 4:34:00 GMT<p>In a recent decision, the Court of Appeal has assessed the jurisdiction of the Māori Land Court and considered the relationship between Māori customary land and the land transfer regime in New Zealand. The case concerns claims in relation to specified areas of the Waikato Riverbed, its waters and adjacent land. </p> <p>From 2002 to 2009, certificates of title in respect of parts of the Waikato Riverbed were issued to the Crown, eventually coming to be held by a large power company. In 2019, twelve hapū and a Māori land trust filed an application in the Māori Land Court, claiming tikanga rights, interests and responsibilities in specified areas of the riverbed. In the Māori Land Court, they sought an order that the riverbed at Pouakani is Māori customary land, the Cown holds title to the riverbed as a fiduciary for the true Māori owners, as well as a declaration that the hapū are the owners of the river water that flows over the riverbed. The power company applied to have the application struck out due to the indefeasibility of their title to the land and the lack of the Māori Land Courts jurisdiction to consider interests in water or fiduciary duties. </p> <p>The Māori Land Court declined the strike-out application. The power company applied to the High Court for judicial review of that decision. The High Court determined that the Māori Land Court has no jurisdiction to inquire into fiduciary duty claims to General land or Crown land and no jurisdiction to make declarations about the ownership of water but allowed the Māori Land Court to consider the customary land claim. Both the claimants and the power company appealed the aspects of that decision that did not favour their position.</p> <p>The case came before the Court of Appeal in March 2026. </p> <p>In determining whether the Māori Land Court have jurisdiction to consider the water claim, the Court of Appeal decided it did not. It accepted the position in te ao Māori that water is inherently interconnected with land but did not accept that this means the Māori Land Court has jurisdiction to consider a claim relating only to water under the Te Ture Whenua Māori Act. </p> <p>The text and purpose of the Act, considered in light of tikanga, does not give the Māori Land Court jurisdiction to determine claims of water where there is no land with any legal status on which to ground the claim. The Court of Appeal stated that this claim may be considered by the High Court.</p> <p>The Court of Appeal dealt with the fiduciary duty claim with regard to one of its own previous decisions where it decided that the Te Ture Whenua Māori Act does not extend jurisdiction to hear fiduciary claims about general or Crown land to the Māori Land Court. Ordinarily, the Court is bound by its previous decision, unless the specific cases warrant departing from that decision. The Court of Appeal did not consider departure justified in this case. As such, the fiduciary duty claim may also be considered by the High Court.  </p> <p>Finally, the Court had to decide if the customary land claim was untenable because of the power company’s indefeasible (absolute) title. With regard to case law, the Court decided that priority must be given to indefeasibility under the Land Transfer regime. Parliament did not intend to create Māori customary title as an exception. Because of this priority, the claim that the riverbed is Māori customary land was considered legally untenable and therefore dismissed. </p> <p>On each of these primary issues, the Court found in favour of the power company. This decision may face further appeal to the Supreme Court, but as it stands, this decision is significant for its impact on the jurisdiction of the Māori Land Court, as well as the relationship between Māori customary land and the land transfer regime in New Zealand.</p> <p>Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.</p> <p> </p>ArticlesMaori IssuesProperty10d6ecbb-581d-4c23-922b-4e0914e1932bClaire Tylerhttps://www.raineycollins.co.nz/your-resources/articles/23-4-26-commercial-lease-negotiation-tips-and-pitfallsWed, 22 Apr 2026 21:45:00 GMT<p>An owner of a retail store thought they had found a premises to rent that was too good to be true.  The rent seemed much lower than other spaces they had looked at and it had good parking outside the premises.</p> <p>However once they progressed into negotiations about the Agreement to Lease it became clear that there were very high outgoings to pay on top of the rent and the landlord had plans to upgrade the building within the next two years so wanted a development clause including in the lease.</p> <p>Below are some tips to make sure you go into lease negotiations fully informed and don’t get tripped up:</p> <ul> <li>Understand the market in terms of incentives and rent-free periods.  Commercial agents and valuers can help with this, but remember the agent works for the landlord.</li> <li>Consider the term (length of time) you need.  Longer initial terms provide certainty to both parties but if you are a new business you may consider a shorter term in case the business is not successful or you discover the premises are not appropriate for the business.</li> <li>If you want any maintenance items to be carried out by the landlord before the lease commences, include those in the Agreement to Lease.</li> <li>Look into NBS (earthquake) status and consider whether your business has any minimum requirements in this regard for health and safety of staff.</li> <li>Make sure you fill in the premises description, include any plans, and fill in the Premises Condition Report as soon as possible.</li> <li>Be clear about who is paying for fit out, the timeframe for completing it and what happens with regard to fit out when you leave/terminate the lease.</li> <li>Get agreement upfront from the landlord to any custom signage your business will be putting on the building.</li> <li>Understand and negotiate make good/reinstatement requirements (eg: some bespoke leases, which are not based on the standard Law Association of New Zealand lease, require carpet replacement or a full repaint of interior at the end of a lease).</li> <li>Consider any known initiatives being put forward by local council in the area, or new developments being built, to understand the effect on parking and access for customers.</li> <li>Make sure you understand if it is a gross lease (including outgoings) or net lease (outgoings paid by you separately, in addition to the rent) that you are negotiating.  </li> <li>Look closely at the outgoings, especially if a net lease and ask for a summary of these from the preceding year.</li> <li>Rent will be advertised on a per square metre basis so you need to understand from the agent upfront how that is split between outgoings and base rent, if relevant, as otherwise you may not be comparing apples with apples.</li> <li>Use the plans provided to make sure the area held out as available to you is actually all useable in the way you plan. If in doubt get a check done by a suitable professional.</li> </ul> <p>It is vital to fully understand your options when negotiating a commercial lease.  Legal advice from a commercial lawyer will help ensure you are protected as much as possible.</p> <p><strong>Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.</strong></p> <p> </p>ArticlesLeasing Tenancyc097a277-78d4-4829-9bbd-b99a05487a24Alan Knowsleyhttps://www.raineycollins.co.nz/your-resources/articles/20-4-26-union-to-pay-damages-and-penalty-to-its-memberSun, 19 Apr 2026 21:43:00 GMT<p>The Employment Court has found that a union breached its duty of good faith to one of its members when it deliberately set out to undermine the member with her employer and other colleagues.  </p> <p>Another union member made a complaint about the member’s behaviour. The Union organised an investigator to look into the allegations and the investigator found no evidence to support the allegations.  Despite that the Union doubled down and tried further to discredit their member with her employer. </p> <p>The Court penalised the Union $12,000 for its breach of good faith all of which is to be paid to the member and ordered $38,000 in compensation to be paid to the union member as well. </p> <p><strong>Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.</strong></p> <p> </p>ArticlesEmploymentc120bdd8-4945-43cb-8471-790afa5acb2aElsa Xiaohttps://www.raineycollins.co.nz/your-resources/articles/17-4-26-the-importance-of-checking-both-the-contract-terms-and-your-evidence-before-escalating-a-dispute-to-courtThu, 16 Apr 2026 21:39:00 GMT<p>A recent English case highlights a basic business issue for New Zealand businesses. The dispute involved a supplier in the UK seeking the equivalent of NZ$416,000 in unpaid invoices. The supplier issued court proceedings against the buyer. </p> <p>The case seemed straightforward as the buyer had stopped paying for deliveries for months. The parties had a clear contract in place, and the supplier’s ledger matched every invoice.</p> <p>The buyer did not dispute their liability to the supplier for breach of contract but they disputed the outstanding amount. </p> <p>The contract term regarding pricing stipulated “…rates as agreed and confirmed in writing per delivery” by the parties.</p> <p>However, in court the supplier failed to prove how the invoices were calculated. This was because they lost most of the rate confirmations from the buyer due to an email migration problem.</p> <p>As the supplier could not find sufficient evidence to prove the amount they lost the case despite having a strong contract.</p> <p><strong>Three Checks before Seeking Litigation</strong></p> <p>If you would like to recover a debt through court proceedings it is important to check your contract terms and your evidence before commencing litigation.</p> <p><strong>Document the calculation method</strong></p> <p>You should check whether the contract terms are sufficiently specific to prove your right to recover the debt and the method of calculating any unpaid invoice. This will enable you to clearly explain how each invoice amount was calculated under the contract.</p> <p><strong>Confirm that evidence of what the agreed rates were exists in writing</strong></p> <p>If the contract requires written confirmations of agreed pricing, ensure those records are available. If your business undergoes restructuring or a system upgrade, ensure that all relevant information is properly retained during the transition period.</p> <p><strong>Verify the evidence is retrievable</strong></p> <p>This case reaffirms that evidence is essential to support your claim. If proving the claim requires digging through archived systems or deleted mailboxes, the case may already be at risk. You should carefully consider the strength of your evidence before issuing court proceedings.</p> <p><strong>Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.</strong></p> <p> </p>ArticlesDebt CollectionLitigationc444d79d-c740-441a-9e49-8e3ea2e1f906Alan Knowsleyhttps://www.raineycollins.co.nz/your-resources/articles/14-4-26-purported-transfer-of-employee-to-another-employer-ineffective-without-consentTue, 14 Apr 2026 0:42:00 GMT<p>The Employment Relations Authority has upheld a claim for unpaid wages, and holiday pay brought by an employee against her employer.</p> <p>The employee was employed by a company from May 2022.  In May 2023 that company’s name was changed and a new company was established with exactly the same name as the old employer. </p> <p>In August 2024, the employee was given notice of termination due to redundancy. The new company was then placed in receivership.</p> <p>At no time was the employee told that her employment had been transferred from the original employer to the new employer with the same name and the new employer continued to use the same bank account as the original employer.</p> <p>The ERA held that the employee was never given any notice of the transfer and did not consent to the transfer. Therefore, the employer remained the original company and the original company was therefore liable for her unpaid wages and holiday pay.</p> <p>If the new employer had sought and obtained consent from the employee to transfer her employment at the time, then the transfer would have been effective, so it pays to follow the correct processes when rearranging employment structures.</p> <p><strong>Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.</strong></p> <p> </p>ArticlesEmployment7edb1f72-a399-4d4e-a66f-3b0875434934Claire Tylerhttps://www.raineycollins.co.nz/your-resources/articles/10-4-26-the-distinct-roles-of-charities-services-the-registrar-of-incorporated-societies-and-the-registrar-of-charitable-trustsThu, 09 Apr 2026 21:55:00 GMT<p>A charitable trust board resolved to vary its trust deed to change its charitable purpose and to change how members of the board were appointed.  They uploaded the updated charitable trust deed to Charities Services.</p> <p>A donor, who specifically wanted to donate to them because they had heard about their new purpose, looked them up on the Register of Charitable Trusts and was confused to see that the new deed had not been registered. </p> <p>Many charitable trust boards are registered with Charities Services to gain tax exempt status.  However, the register that confirms the trust is a legal entity, where any changes to the deed need to be approved first, is the Register of Charitable Trusts.</p> <p>We have seen many situations where trusts (and indeed incorporated societies) believe that Charities Services is the only register that they should be looking at and the only place that changes to the trust deed need to be noted.  This is not correct.</p> <p><strong>The Registrars’ Role</strong></p> <p>The Registrar of Charitable Trusts incorporates charitable trust boards under the Charitable Trusts Act 1957. The Registrar oversees legal compliance with that Act and does not consider charitable status or tax exemptions.</p> <p>Registering as a charitable trust board grants the trust separate legal identity from its trustees and most charitable trusts choose to do this.  </p> <p>The Registrar of Incorporated Societies is responsible for incorporating, maintaining and ensuring legal compliance of incorporated societies under the Incorporated Societies Act 2022. </p> <p>Registering as an incorporated society or charitable trust does not automatically register your entity as a charitable entity with Charities Services - this must be done separately.</p> <p>Any variations to a trust deed for a charitable trust board must be registered with the Registrar of Charitable Trusts first, before Charities Services.  This ensures the registrar has checked and approved the document first.</p> <p><strong>Charities Services’ Role</strong></p> <p>Charities Services is the regulator overseeing registered charities in accordance with the Charities Act 2005, which grants tax exemptions to entities that meet the charitable purpose requirements.</p> <p>Charities Services only deals with existing legal entities that are applying for charitable status.  Therefore the entity needs to exist as a legal entity first, before making an application to be a charity.</p> <p>Registering as a charity with Charities Services does not make an entity a legal entity; it simply allows it to call itself a charity and grants it tax exempt status.</p> <p>Variations to trust deeds (or in the case of incorporated societies, constitutions) should be uploaded to Charities Services for approval <em>after</em> they have been approved by the Registrar of Charitable Trusts (or Registrar of Incorporated Societies for societies).</p> <p><strong>Summary</strong></p> <p>People often confuse the roles of these regulators given the overlapping terminology. Both have filing requirements and it is important that all existing registered charities are aware of their obligations to both.</p> <p><strong>Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.</strong></p> <p> </p>ArticlesNot For Profit